In the Matter of the Complaint Against

SCOTT P. CULLINANE
at
6009 Beltline Road, Suite 210
Dallas, TX 75240-7875
and
5229 Verde Valley, #1219
Dallas, TX 75240-7438
and
RICHARD L. RENZI
at
6009 Beltline Road, Suite 210
Dallas, TX 75240-7875
and
195 North Harbor, #3501                                        P. S. Docket 39/32
Chicago, IL 60601-7527
and
MICHAEL F. CULLINANE
6009 Beltline Road, Suite 210
Dallas, TX 75240-7875
and
6921 Tudor Drive
Plano, TX 75023-1056
and
CRC PUBLICATIONS, INC.
at
6009 Beltline Road, Suite 210
Dallas, TX 75240-7875
d/b/a
YELLOW PAGES OF ARIZONA
1661 E. Camelback Rd., Suite 250
Phoenix, AZ 85016-3914
and
YELLOW PAGES OF ARKANSAS
12111 West Markham, #14600
Little Rock, AR 72211-2734
and
YELLOW PAGES OF CALIFORNIA
5230 Pacific Concourse Drive, Suite 200
Los Angeles, CA 90045-6256
and
YELLOW PAGES OF CALIFORNIA
1750 Montgomery St.
San Francisco, CA 94111-1003
and
YELLOW PAGES OF COLORADO
4600 S. Ulster St., Suite 700
Denver, CO 80237-2873
and
YELLOW PAGES OF DELAWARE
231 S. Broadway, Suite 281
Baltimore, MD 21231-2406
and
YELLOW PAGES OF FLORIDA
3001 N. Rocky Point E., Suite 200
Tampa, FL 33607-5806
and
YELLOW PAGES OF IDAHO
675 Fairview Dr., Suite 246
Carson City, NV 89701-5436
and
YELLOW PAGES OF ILLINOIS
625 N. Michigan Ave., 5th Floor
Chicago, IL 60611-3108
and
YELLOW PAGES OF INDIANA
1508 E. 86th Street
Indianapolis, IN 46240-1986
and
YELLOW PAGES OF IOWA
7517 Douglas Ave., Suite 15
Urbandale, IA 50322-3075
and
YELLOW PAGES OF KENTUCKY
822 East Broadway, Suite 400
Louisville, KY 40204-1053
and
YELLOW PAGES OF LOUISIANA
2955 Ridgelake Dr., Suite 112
Metairie, LA 70002-4947
and
YELLOW PAGES OF MARYLAND
231 S. Broadway, Suite 281
Baltimore, MD 21231-2406
and
YELLOW PAGES OF MINNESOTA
603 Washington Ave., S.E., Suite 100
Minneapolis, MN 55414-2950
and
YELLOW PAGES OF NEBRASKA
4600 S. Ulster St., Suite 700
Denver, CO 80237-2873
and
YELLOW PAGES OF NEVADA
675 Fairview Dr., Suite 246
Carson City, NV 89701-5436
and

YELLOW PAGES OF NEW ENGLAND
25 Burlington Mall Rd., Suite 300
Burlington, MA 01803-4100
and
YELLOW PAGES OF NEW MEXICO
4600 S. Ulster St., Suite 700
Denver, CO 80237-2873
and
YELLOW PAGES OF NEW YORK
122 East 42nd Street,Suite 1700
New York, NY 10168-0002
and
YELLOW PAGES OF NORTH CAROLINA
212S. Tryon St., Suite 1680
Charlotte, NC 28281-0001
and
YELLOW PAGES OF NORTH DAKOTA
4600 S. Ulster St., Suite 700
Denver, CO 80237-2873
and
YELLOW PAGES OF OHIO
172 E. State St., Suite 300
Columbus, OH 43212-4321
and
YELLOW PAGES OF OKLAHOMA
10962 N. May, Suite 405
Oklahoma City, OK 73120-6202
and
YELLOW PAGES OF OREGON
4370 NE Halsey
Portland, OR 97213-1566
and
YELLOW PAGES OF SOUTH CAROLINA
212 Tryon St., Suite 1680
Charlotte, NC 28281-0001
and
YELLOW PAGES OF SOUTH DAKOTA
4600 S. Ulster St., Suite 700
Denver,CO 80237-2873
and
YELLOW PAGES OF TENNESSEE
6554 Winchester Rd., Suite 345
Memphis, TN 38115-4241
and
YELLOW PAGES OF VIRGINIA
1801 Robert Fulton Dr., Suite 400
Reston, VA 22091-4347
and
YELLOW PAGES OF WASHINGTON
1420 5th Avenue, Suite 2200
Seattle, WA 98101-2378
and
YELLOW PAGES OF WEST VIRGINIA
1801 Robert Fulton Dr., Suite 400
Reston, VA 22091-4347
and
YELLOW PAGES OF WISCONSIN
603 Washington Ave., S.E., Suite 10
Minneapolis, MN 55414-2950
and
YELLOW PAGES OF WYOMING
4600 S.Ulster St., Suite 700
Denver, CO 80237-2873

APPEARANCE FOR COMPLAINANT: Jerry Belenker, Esq. Leonard Aron, Esq. Consumer Protection Division United States Postal Service Law Department Washington, DC 20260-1112

APPEARANCE FOR RESPONDENTS: G. Richard Poehner, Esq. Alexander, Weston & Poehner, PC 3100 Monticello, Suite 805, L.B. 17 Dallas, TX 75205

INITIAL DECISION

This proceeding was initiated on March 26, 1992, when the Postal Service filed a Complaint alleging that Respondents Scott P. Cullinane d/b/a American Yellow Pages, Yellow Pages of Minnesota, and Yellow Pages of Wisconsin are engaged in conducting a scheme or device for obtaining money or property through the mail by means of false representations in violation of 39 U.S.C. § 3005 and by means of solicitations in the guise of invoices which are nonmailable under 39 U.S.C § 3001(d). Specifically, the Complaint alleges in paragraph 6 that Respondents falsely represent, directly or indirectly, in substance and effect, whether by affirmative statement, implication or omission, that:

(a) The addressee has previously authorized a listing in Respondents' telephone directory;




(b) The amount set forth on the face of the solicitation is due and owed to Respondents.




(c) Respondents are a part of or affiliated with a company which distributes telephone directories to the recipients of the solicitation.




(d) Respondents are the publisher of a "yellow pages" telephone directory customarily supplied to telephone subscribers in the recipient's area.




(e) Respondents' directory will be distributed to all telephone subscribers who appear in the directory in which the recipient of the solicitations is currently listed.

(f) Publication and distribution of Respondents' directory will take place in accordance with time frames customary to the "yellow pages" directory in which the recipient of the solicitation is currently listed.

The Complaint also alleges that the mailings are solicitations in the guise of invoices and are nonmailable because they fail to contain the notice required by 39 U.S.C. § 3001(d) and Domestic Mail Manual § 123.4. Under the circumstances, Complainant alleges that this constitutes prima facie evidence that the Respondents are engaged in a scheme or device for obtaining money through the mail by means of false representations.

In timely filed Answers, Respondents deny that they make the false representations alleged in the Complaint or that they have otherwise violated the statute.
On June 12, 1992, the Complaint was amended to add Respondents Richard L. Renzi, Michael F. Cullinane, and CRC Publications, Inc., and to change the addresses for Scott Cullinane. The Amended Complaint also included additional publications containing different state names under which Respondents do business (e.g. "Yellow Pages of [state name]"). All of these names appear in the caption herein.

Respondents filed timely Second Amended Answers admitting the use of the various trade names with the following exceptions. Respondents denied the use of the names Yellow Pages of Arizona, Indiana, Kentucky, Minnesota, New York, Ohio, Oregon, Tennessee, Washington, and Wisconsin, but acknowledged the use of Yellow Pages of Arizona Business Directory, Yellow Pages of Indiana Business Directory, Yellow Pages of Kentucky Business Directory, Yellow Pages of Minnesota Business Directory, Yellow Pages of New York Directory Listings, Yellow Pages of Ohio Directory Listings, Yellow Pages of Oregon Directory Listings, Yellow Pages of Tennessee Business Directory, Yellow Pages of Washington Directory Listings, and Yellow Pages of Wisconsin Business Directory.

However, at the hearing, Respondents stipulated that the list of names, trade names, and addresses in the caption of the amended complaint, which appear in the caption herein, is correct (Tr. 5).

A hearing was held by the Administrative Law Judge on July 15, 1992, in Washington, DC. All parties were represented by counsel and afforded full opportunity to be heard, adduce relevant evidence, and examine and cross-examine witnesses. Complainant presented the testimony of expert witness Dr. Effie Hacklander and consumer witness Rusty Whitney. Respondents presented the testimony of Respondents Richard Renzi, Michael Cullinane and Scott Cullinane. Both parties presented documentary evidence.

On August 28, 1992, the parties filed proposed findings of fact and conclusions of law which have been duly considered. To the extent indicated below, proposed findings and conclusions have been adopted; otherwise, they have been rejected as irrelevant or contrary to the evidence. The findings of fact and conclusions of law set forth below are based on the entire record herein, including observation by the Administrative Law Judge of the witnesses and their demeanor, the briefs, stipulations, exhibits, and other relevant evidence adduced at the hearing:

FINDINGS OF FACT

1. Respondents Scott P. Cullinane, Michael F. Cullinane, and Richard Renzi are active in the administration and operation of the corporate Respondent, CRC Publications, Inc. (2nd Amended Ans. ¶ 2). The corporation uses the trade names set forth in the caption, including "Yellow Pages of [state name]," The more recent publications are followed by the words "Directory Listings" or "Business Directory" (Tr. 23).

2. Scott P. Cullinane is Chief Financial Officer of the company, and assists Michael Cullinane in running the daily operations (Tr. 94, 171-172). Michael Cullinane is Vice President of CRC Publications, Inc., and assists the President with daily operations (Tr. 147). Respondent Richard Renzi is President of the corporation (Tr. 87). CRC was incorporated in April of 1992. The business previously operated as a partnership comprised of the three individual Respondents herein (Tr. 94). The partnership mailed the solicitations in issue (Tr. 93-94).

3. Respondents solicit remittances of $98.50 (plus $10.50 for fax or 800 No.) through the mail for advertising listings in "Yellow Pages of [State name]" at the addresses set forth in the caption for each Yellow Pages directory listed.

Respondents' Mailings

4. Respondents send two mailings to businesses which typically advertise in the local yellow page telephone directory for their area. The first mailing (CX-1) is entitled "Yellow Page Directory Solicitation" with "Yellow Pages of [a named state or area]" (sometimes followed by "Business Directory" or "Directory Listings") and the "walking fingers" logo prominently featured at the top of the page. Also, a very large light gray version of the "walking fingers" logo appears near the bottom in the center of the page. The form contains the recipient's "listing" with business name, address, telephone number, "SIC Code" number, and classification information. Although not explained on the mailing, the SIC Code is the federal Standard Industrial Classification Code. The recipient is instructed to request printing in the "next directory" if the listing is correct, and to note any changes that may be required. The recipient is told to sign the form and return it to Yellow Pages of [State Name] in order to receive the directory listing.

5. Subsequently, the Respondents send the recipient a standard form invoice (CX-2, 4) from "Yellow Pages of [State Name] Business Directory" or "Yellow Pages of [State Name] Directory Listings" instructing him or her to pay $98.50 for the yellow pages listing, plus $10.50 if the recipient requests a Fax or 800 number to be listed. The invoice contains the "walking fingers" logo. Attached to the invoice is a copy of the bottom portion of the previous mailing containing the recipient's signature.

6. At the time of the hearing, several directories had been published by Respondents. They contain three major sections: (1) white pages listing the firms that replied to Respondents' solicitations; (2) blue pages listing government offices; and (3)yellow pages listing business categories alphabetically. In each of these sections, the businesses in each classification category are listed alphabetically without geographical breakdown within the state (CX-5).

The False Representations

7. Respondents' solicitations make Representations (a) and (c)-(f). The language making such representations, when read in the context of the entire solicitation, is set forth below under each of these quoted representations. With the exception of Representation (f), these representations are materially false. Representation (b) is not made.

(a) The addressee has previously authorized a business listing in Respondents' telephone directory.

8. As set forth below, many recipients have the impression that the solicitation is from the yellow page telephone directory published by the local telephone company in which they regularly advertise. Also, the solicitation has an "SIC Code" number in two locations, which suggests to many ordinary readers who would not understand the meaning of "SIC" that the recipient has an existing account reflecting previous authorization for a listing in the directory (Tr. 43). In addition, the use of the word "listing" ("listing is correct, print as shown") reinforces this representation. In this context "listing" means an "entry on a list." Accordingly, the solicitation implies that the recipient's name, address, and telephone number have appeared on a previous list of advertisers in Respondents' previous yellow page directory. The solicitation also urges the recipient to "avoid omission from the next directory," implying that he had been listed in the previous directory. Further, the words "OUR RECORDS INDICATE YOUR COMPANY IS CLASSIFIED AS SHOWN BELOW" (emphasis supplied) indicate that the recipient was previously listed in Respondents' directory.

9. Also, as stated hereafter, the terms and conditions on the back of the solicitation are in small print and would not be read by many ordinary readers. Accordingly, Respondents' arguments with respect thereto are rejected.

10. Finally, The solicitation makes no effort to distinguish Respondents' directory from the products that are offered by other directory publishers, including the yellow pages directory in which the recipient was previously listed. There is no attempt to build their own name, as would be expected of a new directory (Tr. 46-47).

11. This representation is based upon the solicitation, but is also corroborated by credible expert testimony (Tr. 26, 28). The representation is materially false since Respondents have not published a previous directory and there has been no previous list of advertisers (Tr. 120).

(b) The amount set forth on the face of the solicitation is due and owed to Respondents.

12. Contrary to the position taken by Complainant, there is little indication on the solicitation giving the impression that any money is due and owed by the recipient to Respondents. In fact, the overall impression of the Respondents' first mailing (CX-1) is that of a solicitation rather than a bill, and the ordinary recipient does not get the impression that he has been previously obligated to purchase an advertisement in the next directory.

13. In this regard, the mailing is entitled "Yellow Page Directory Solicitation" and the words "THIS IS A SOLICITATION" also appear in the center of the page. The words "THIS IS NOT A BILL" also appear in very large print in the center of the page. The $98.50 charge for an advertisement is printed rather than typed and is inconspicuously mentioned in the sentence "A charge of $98.50 will be billed annually. . ." Few readers would notice the reference in small print on the back that "receipt of your check" would constitute acceptance of Respondents' offer.

14. Also, that the recipient has not previously been obligated to purchase or renew an advertisement is suggested by the request to sign his name and submit the form in order "to avoid omission from the next directory." One box which he can check is "Print as shown," which suggests that the ad will not be printed unless the recipient's approval is given. Although "SIC Code" might be mistaken for an account number, which might in some circumstances tend to indicate that an amount is due, in the context of this mailing, it merely indicates that a renewal of a previous advertisement is being solicited.

15. It is noted that the back side of the mailing contains many terms in small, inconspicuous print. There, the mailing states that the mailing is merely an "offer." However, since this would not be noticed by many ordinary readers, it has not been considered in making the above finding.

16. Finally, although the second mailing is clearly in the form of an invoice, that mailing is not in issue since it is not the "solicitation" to which Complainant refers in ¶ 6(b) of the Complaint. However, even assuming arguendo that the second mailing falls within the ambit of ¶ 6(b), it still would not constitute a false representation. Complainant apparently contends that the second mailing is void since a recipient would have been defrauded by the offer in the first mailing. If the invoice could be considered void, then the representation that money is owed would be false. However, this argument is rejected since a contract induced by fraud is merely voidable by a court, and is not yet void. Until a court takes that action, the contract is valid. Therefore, the representation that money is due and owing to Respondents is true since the recipient became obligated to Respondents by accepting the offer.

(c) Respondent is a part of or affiliated with a company which distributes telephone directories to the recipients of the solicitation.

17. This false representation follows from Representation (a) that the recipient has previously authorized a listing in Respondents' directory.

(d) Respondents are the publisher of a "yellow pages" telephone directory customarily supplied to telephone subscribers in the recipient's area;

18. Respondents' solicitation is printed on yellow paper and is headed "Yellow Pages of [state name]." The walking fingers logo appears in the center at the top of the page. The logo is typically associated with the standard local yellow page telephone directory in the minds of many ordinary readers. "Yellow Page Directory" appears again at the top right corner. The logo appears again at the bottom in the center of the page in a large 2 inch square graphic.

19. The following disclaimer appears in the middle of the page in an inconspicuous location: "A charge of $98.50 will be billed annually for a state-wide classification." Although the reference to a "state-wide classification" (region-wide in some solicitations) tends to distinguish this product from the local telephone directory, many ordinary readers would not notice this language or appreciate its significance. This finding is based on the solicitation but is also corroborated by both expert (Tr. 55-56, 58, 60, 62) and consumer (Tr. 84) testimony. Also, the references to "out-of-town businesses" and "businesses throughout your state" on the back of the solicitation appear in small print in the terms of the agreement and would not be noticed by the ordinary reader. Also, many would not notice the language at the bottom of the front page that"American Yellow Pages is not affiliated with AT&T or any local telephone company." This conclusion is also corroborated by the expert testimony (Tr. 34). See also consumer testimony (Tr. 81).

20. Finally, the use of a local business reply address in or near the state in question further enhances this representation. In fact, the address is used only for forwarding to Respondents (Tr. 125).

21. This representation is based on the solicitation but is also corroborated by expert testimony (Tr. 24-25, 29, 48).

22. Representation (d) is materially false.

(e) The Respondent's directory will be distributed to all telephone subscribers who appear in the directory in which the recipient of the solicitations is currently listed.

(f) Publication and distribution of Respondents' directory will take place in accordance with time frames customary to the "yellow pages" directory in which the recipient of the solicitation is currently listed.

23. Both of these representations are implicitly made and follow from the fact that Respondents represent their publication to be the standard yellow pages telephone directory customarily supplied to all telephone subscribers in the recipient's area.

24. With regard to Representation (e), it is noted that such directories are typically supplied to all telephone subscribers in the recipient's region (Stip., Tr. 191). Since Respondents' directory is supplied only to the advertisers and a limited number of other individuals and organizations (usually those who responded to the solicitation but did not pay), the representation is materially false (Tr. 92, 157, 160, 148, 184; Stip. Tr. 193-194).

25. With regard to Representation (f), Respondents implicitly represent that publication and distribution of their directory will take place in accordance with standard time frames for the "yellow pages" industry. However, there is no evidence of how long it normally takes for a standard yellow page directory to be published and distributed, and insufficient evidence about the timing of Respondents' distribution and publication. Accordingly, Complainant has failed to prove that Representation (f) is false.

Solicitation vs. Invoice

26. Complainant argues that Respondents' mailings are in the form of, or reasonably could be construed as, bills, invoices or statements of accounts due, but are, in fact, solicitations which require the disclaimer prescribed by 39 U.S.C § 3001(d). For the reasons set forth in connection with the discussion of Representation (b), the mailings would not reasonably be construed as a bill obligating the recipient to make payment unless the offer was accepted.

CONCLUSIONS OF LAW

1. (a) Each of Respondents' advertisements must be considered as a whole and the meaning is to be determined in light of the probable impact of this material on a person of ordinary mind. Donaldson v. Read Magazine, 333 U.S. 178, 189 (1948); Peak Laboratories, Inc. v. U.S. Postal Serv., 556 F.2d 1387, 1389 (5th Cir. 1977). The statute is intended to protect the gullible, naive, and less critical reader, as well as the more sophisticated, wary reader. Fields v. Hannegan, 162 F.2d 17 (D.C. Cir. 1947), cert. denied, 332 U.S. 773 (1947); M.K.S. Enterprises, Inc. v. United States Postal Service, 459 F. Supp. 1180, 1184 (E.D.N.Y. 1978); Gottlieb v. Schaffer, 141 F. Supp. 7 (S.D.N.Y. 1956); Leo Daboub, P.S. Docket No. 19/185 (P.S.D. July 10, 1986). Express misrepresentations are not required. It is the net impression which the advertisement is likely to make upon individuals to whom it is directed which is important, and even if an advertisement is so worded as not to make an express representation, if it is artfully designed to mislead those responding to it, the false representation statute is applicable. G.J. Howard Co. v. Cassidy, 162 F. Supp. 568(E.D.N.Y. 1958); See also, Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976).

(b) Where an advertisement is ambiguous or capable of more than one meaning, if one of those meanings is false, the advertisement will be held to be misleading. Rhodes Pharmacal Co. v. F.T.C., 208 F.2d 382, 387 (7th Cir. 1953); Ralph J. Galliano, P.S. Docket No. 19/15 (P.S.D. May 2, 1985 at p. 9). It is not difficult to select words that will not deceive. See, United States v. 95 Barrels of Vinegar, 265 U.S. 438 (1924).

(c) An inconspicuous disclaimer is not sufficient to dispel the effect of false representations. Leo Daboub, supra; Gottlieb v. Schaffer, supra.

(d) The Administrative Law Judge can determine whether the representations are made, their effect on the ordinary mind, and materiality without the assistance of lay or expert testimony. Standard Research Labs, P.S. Docket No. 7/78 (P.S.D. Oct. 27, 1980); The Robertson-Taylor Company, P.S. Docket Nos. 16/98-102, 16/120-121, (P.S.D. March 31, 1986 at page 29); Vibra-Brush v. Schaffer, 152 F. Supp. 461 (S.D.N.Y. 1957), rev'd on other grounds, 256 F.2d 681 (2nd Cir. 1958).

(e) Complainant's expert witness in consumer behavior was well-qualified and credible. It was not necessary for her to perform tests or surveys with respect to the yellow-page scheme in question for her testimony to be helpful to the Administrative Law Judge. Kingsbridge Marketing & Media, Inc., P.S. Docket No. 20/17 (PSD June 13, 1986). Nor does she need to be a "yellow pages" expert within the specialty of consumer behavior. Athena Products, Ltd., P.S. Docket No. 11/77 (June 21, 1982).

(f) In reaching the decision herein, the Administrative Law Judge has considered the specific types of ordinary business people to whom the solicitations in question were directed. In reaching the conclusion that representations (a) and (c)-(f) were made in this case, it was not necessary to rely on the testimony of either the expert witness or the lay witness herein. However, as noted in the findings of fact, their testimony corroborated the independent findings of the Administrative Law Judge.

(g) The issue in a proceeding under 39 U.S.C. § 3005 is whether materially false representations are being made by the entire solicitation, not whether Respondents have a right to use any particular logo. See, Scott David Wilcox, P. S. Docket No. 18/147 (P.S.D. April 20, 1988); Telco Directories, Inc., P. S. Docket No. 22/111 (P.S.D. February 25, 1987). Although the "Walking Fingers" logo is not copyrighted, it has been held to contribute to the overall impression that a mailing is from the yellow page directory published by the local telephone company. Mid-Am Marketing, Inc., P.S. Docket No. 24/12 (P.S.D. January 5, 1987).

2. Applying the foregoing standards, I find that Respondents' advertisements make the representations alleged in ¶ 6(a) and 6(c)-(f) of the Complaint. The language contained in the advertisements, when read in context, which directly or impliedly makes these representations is set forth in the findings of fact. Representation 6(b) is not made.

3. As set forth in the findings of fact, the representations set forth in paragraph 6(a), (c), (d), and (e) of the Complaint are materially false. Complainant has failed to prove that Representation (f) is false.

4. The representations made by Respondents are material because they have a tendency to persuade readers to order and pay for Respondents' product.

5. A solicitation is "nonmailable" if it "is in the form of, and reasonably could be interpreted or construed as, a bill, invoice, or statement of account due" unless it contains the disclaimer prescribed by the statute or the Domestic Mail Manual.^1/ The determination of mailability is to be based on the totality of the solicitation and the impression created in the minds of those to whom it is directed. Donaldson v. Read Magazine, Inc., 333 U.S. 178 (1948); Borg-Johnson Electronics v. Christenberry, 169 F. Supp. 746 (S.D.N.Y. 1959); Vibra-Brush Corp.v. Schaffer, 152 F. Supp. 461 (S.D.N.Y. 1957), rev'd on other grounds, 256 F.2d 681 (2d Cir. 1958). This does not mean that the trier of fact is limited to the interpretation which a majority of recipients would place on a solicitation. Rather, the trusting are to be protected as well as the wary. Donaldson v. Read Magazine, Inc., supra, at 189; Fields v. Hannegan, 162 F.2d 17 (D.C. Cir. 1947), cert. denied, 332 U.S. 773 (1947); M.K.S. Enterprises, Inc. v. United States Postal Service, 459 F. Supp. 1180, 1184 (E.D.N.Y. 1978); IHS Department of Unclaimed Funds and Benefits, P.S. Docket No. 22/155 (P.S.D. Sept. 22, 1986); Leo Daboub, P.S. Docket No. 19/185 (P.S.D. July 10, 1986).

6. The best evidence that a mailing appears to be an invoice is the mailing itself. Telex & twx Directory, P.S. Docket No. 13/6 (P.S.D. April 1, 1983). As set forth in the findings of fact under Representation (b), Respondents' first mailing does not appear to the ordinary reader to be a bill arising out of a previous obligation to advertise in the Respondents' yellow pages telephone directory. Accordingly, the statute and regulations do not require the mailing to contain the statutory disclaimer. 39 U.S.C. § § 3001(d).

7. With the exception of Representations (b) and (f), Complainant has established its case by a preponderance of the reliable and probative evidence of record. S.E.C. v. Savoy Industries, Inc., 587 F.2d 1149, 1168 (D.C. Cir. 1978).

8. Respondents are engaged in the conduct of a scheme for obtaining remittances of money through the mail by means of materially false representations in violation of 39 U.S.C. § 3005.

9. The attached False Representation Order and Cease and Desist Order should be issued.

Randolph D. Mason
Administrative Law Judge

1/ The statute requires the following prominent and conspicuous notice: "This is a solicitation for the order of goods or services, or both, and not a bill, invoice, or statement of account due. You are under no obligation to make any payments on account of this offer unless you accept this offer." 39 U.S.C. § 3001(d)(2)(A). The regulations provide the following alternative: "THIS IS NOT A BILL. THIS IS A SOLICITATION, YOU ARE UNDER NO OBLIGATION TO PAY UNLESS YOU ACCEPT THIS OFFER." DMM § 123.41(a). Respondents' mailing does not contain either notice.